¶1I concur in the result reached by the majority.
¶2The majority opinion, however, in my view, does not give sufficient weight to the holding of the Appellate Division, Second Department, in People v DiLuca (85 AD2d 439 [1982]). There, as here, the Trial Judge, sua sponte, suggested that the jury take notes. There, as here, the Trial Judge gave no advice to the jurors with respect to taking of notes, nor were the jurors instructed regarding the proper use of such notes. There, as here, the defense attorney made general objection to the jurors being permitted to take notes, but did not request any cautionary instruction.
¶3No purpose is served by repeating, at length, the reasoning and discussion to be found in the well-reasoned, thorough, and incisive opinion of the court in DiLuca (supra).
¶4Several factors should, however, be noted. In DiLuca (supra),between 6 and 8 jurors accepted note pads from the court and three jurors were observed taking notes during summations, the court’s charge, and the rereading of certain evidence. Here, the record reflects only one juror having received paper for the purpose of note-taking. In Bolm v Triumph Corp. (58 AD2d 1014, 1015 [4th Dept 1977]), where one juror had been designated to take notes on "key” parts of the charge, the court stated, "The responsibility for explaining the law rests upon the court, however, and not upon a designated lay juror who might or might not record statements of law accurately, and the court should not have directed the notetaking.”
¶5Even in the absence of the People v Owens (69 NY2d 585 [1987]) considerations discussed by the majority, the sua sponte direction to the jurors to take notes, without any of the mandatory safeguards set forth in People v DiLuca (supra)requires a reversal. It should be noted, also, that the DiLucacourt rejected the suggestion that a showing of prejudice was required in order to establish reversiblé error.
¶6Although this issue of juror note-taking has not been previously considered by this court, trial courts within this department must follow the determinations of the Appellate Division in another department until such time as this court or the Court of Appeals passes on the question (1 Carmody-Wait 2d, NY Prac § 2:63, at 75; Mountain View Coach Lines v Storms, 102 AD2d 663 [2d Dept 1984]).